Matthew Hinojosa v. the State of Texas ( 2023 )

NUMBERS 13-23-00051-CR, 13-23-00052-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MATTHEW HINOJOSA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Tijerina
In appellate cause number 13-23-00051-CR, appellant Matthew Hinojosa pleaded
guilty to two counts of aggravated assault with a deadly weapon, see TEX. PENAL CODE
ANN. § 22.02, offenses enhanced from a second-degree felony to a first-degree felony by
Hinojosa’s prior criminal history, see id. § 12.42. For these offenses, Hinojosa was
sentenced to fifteen years’ incarceration. In appellate cause number 13-23-00052-CR,
Hinojosa pleaded guilty to unlawful possession of a firearm by a felon, see id. § 46.04, a
third-degree felony, see id. § 12.42. Hinojosa was sentenced to ten years’ incarceration.
These sentences are concurrent. Hinojosa was placed on deferred adjudication. By a
single issue in both appellate causes, Hinojosa argues that his sentences constitute cruel
and unusual punishment. We affirm.
I. BACKGROUND
On August 17, 2022, Hinojosa pleaded guilty to all three counts in both indictments.
He was placed on deferred adjudication community supervision for a period of ten years
for the aggravated assault with a deadly weapon counts. Hinojosa was convicted and
sentenced to ten years’ imprisonment for the unlawful possession of a firearm charge,
which was probated for ten years. As part of the plea agreement, Hinojosa agreed to a
“zero-tolerance” supervision, i.e., there was no leeway if he violated any terms or
conditions of his community supervision.
On November 2, 2022, the State filed a motion to revoke community supervision
and to adjudicate guilt, alleging Hinojosa tested positive for cocaine, failed to abide by a
zero-tolerance policy, failed to pay restitution, failed to pay community supervision fees,
and failed to pay crime stoppers’ fees.
On January 10, 2023, the trial court held a hearing on the State’s motion to revoke
community supervision. Hinojosa pleaded true to all of the State’s allegations. Hinojosa
explained to the trial court that he was addicted to cocaine before he went to prison and
one month before Hinojosa was released, he lost his father. Hinojosa asserted that due
to the tough situation, he “made a stupid decision to violate” his probation when he opted
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to use cocaine and to be around alcohol. Hinojosa testified that he understood there was
no leeway with his zero-tolerance supervision.
The State presented Kristen Jamison, a community supervision officer. Jamison
explained that Hinojosa was a registered sex offender, had previously been in prison for
sexual assault of a child, and was also convicted of a state-jail felony. Regarding the
aggravated assault cases, the State explained that Hinojosa “pistol whipped” his girlfriend
and another victim. Hinojosa’s girlfriend suffered head injuries and was in the hospital for
a number of days. According to the State, Hinojosa hid the pistol in his attic. The State
requested that the trial court sentence Hinojosa to the maximum sentence in both causes
because Hinojosa was on zero-tolerance community supervision for only one month
before violating the terms of his supervision.
The trial court accepted Hinojosa’s pleas of true, revoked Hinojosa’s community
supervision in both causes, and sentenced him to fifteen years’ incarceration for the
aggravated assault with a deadly weapon offenses. This sentence was to be served
concurrently with his ten-year sentence for unlawful possession of a firearm.
II. PUNISHMENT
By his sole issue, Hinojosa asserts that the sentence imposed was
disproportionate to the seriousness of the alleged offenses in violation of the Eighth and
Fourteenth Amendments. Hinojosa recognizes that “an appeal prefaced on the grounds
of disproportionate punishment may be frivolous,” but states that he has “raised this
specific issue to ensure that there was no waiver of an anticipatory claim of
disproportionate punishment in Federal Court.”
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The trial court’s decision on punishment is reviewed for an abuse of discretion.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Quintana v. State, 777
S.W.2d 474, 479–80 (Tex. App.—Corpus Christi–Edinburg 1989, writ ref’d). “Subject only
to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-
disproportionality review, a punishment that falls within the legislatively prescribed range,
and that is based upon the sentencer’s informed normative judgment, is unassailable on
appeal.” Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006); Trevino v.
State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d)
(explaining that a sentence will most likely not be overturned on appeal if it is assessed
within the legislatively determined range).
“Excessive bail shall not be required, nor excessive fines, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend VIII. The Eighth Amendment applies to
punishments imposed by state courts through the Due Process Clause of the Fourteenth
Amendment. Id. amend. XIV. This right and almost every constitutional or statutory right
can be waived by a “failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.
App. 1986); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d);
Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)
(concluding that the appellant’s argument that the sentence imposed was grossly
disproportionate to the offense had not been preserved due to the appellant’s failure to
object at trial); see Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (“As
a general rule, an appellant may not assert error pertaining to his sentence or punishment
where he failed to object or otherwise raise such error in the trial court.”); see also Maza
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v. State, No. 13-14-00128-CR, 2015 WL 3637821, at *2 (Tex. App.—Corpus Christi–
Edinburg June 11, 2015, no pet.) (mem. op., not designated for publication) (prohibiting
the appellant from making his Eighth Amendment violation argument for the first time on
appeal because the argument was not preserved as he did not object on that basis in the
trial court); Martinez v. State, No. 13-02-508-CR, 2003 WL 22681385, at *4 (Tex. App.—
Corpus Christi–Edinburg Nov. 13, 2003, pet. ref’d) (mem. op., not designated for
publication) (same). To preserve a complaint of disproportionate sentencing, the
defendant must make a timely, specific objection to the trial court or raise the issue in a
motion for new trial. Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino,
174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479.
However, Hinojosa neither objected when the trial court pronounced the sentence
nor complained in any post-trial motion that the sentence was excessive,
disproportionate, or violated the Eighth or Fourteenth Amendments. See id. Therefore,
Hinojosa has failed to preserve this issue for our review. See TEX. R. APP. P. 33.1; Kim,
283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28;
Quintana, 777 S.W.2d at 479. Moreover, even had Hinojosa preserved error, a
punishment falling within the limits prescribed by a valid statute, as in this case, is not
excessive, cruel, or unusual. See Trevino, 174 S.W.3d at 928. The fifteen years’
imprisonment sentence was within the statutory range, which had been elevated due to
his repeat felony offender status. See TEX. PENAL CODE ANN. § 12.42. Furthermore, the
ten-year prison sentence was also within the statutory range. Therefore, because
Hinojosa failed to object to the sentence and the sentences are within the punishment
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range, we overrule Hinojosa’s sole issue. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at
475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777
S.W.2d at 479.
III. CONCLUSION
We affirm the judgments of the trial court.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
27th day of July, 2023.
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